Criminal Law ? Aldrich Legal Services

This week U.S. Court of Appeals Sixth Circuit there was a case involving criminal law in which the Petitioner was serving a life sentence for the 1991 murder of B in Ohio. The court concluded that the evidence he submitted to show his innocence was analogous to the evidence considered ?new? in Schlup. In the district court, petitioner ?submitted four ?particularly relevant? items of additional evidence that, when considered together with the record as a whole, present a compelling case? for his innocence ? (1) the recantation of the only eyewitness to the murder, A, (2) an affidavit from forensic scientist LD stating that B?s blood was found at the scene of another murder, suggesting that B was murdered first and shortening the window of time for her death from between 12:00 AM and 3:00 AM on 8/8/91, as previously thought, to between 12:00 AM and 1:25 AM on 8/8/91, (3) an affidavit from DD declaring that he met with petitioner in New York between 10:00 PM on 8/7/91 and 12:00 AM on 8/8/91, and (4) flight records showing that the last flight from New York City to Cleveland on 8/7/91 departed at 10:40 PM. The court noted that there were substantial differences between A?s 1991 recantation and his 2006 recanting affidavit. The 2006 affidavit explained the reason behind A?s withdrawal of his 1991 recantation ? fear that the prosecution would charge him with B?s murder. Also, the 1991 recantation preceded A?s claim that he witnessed the second assault that caused B?s death. The court concluded that contrary to the district court?s determination, A?s 2006 recanting affidavit contained information that was not available to petitioner as the time of his trial. Neither party asserted that the forensic information in LD?s affidavit was either known or available to petitioner at the time of his trial. The court also concluded that DD?s affidavit, which contained additional information not previously possessed by petitioner, was new evidence. While the flight information was readily available during the trial, without the LD and DD affidavits narrowing the time-lapse between his presence in New York and B?s murder, ?the flight records would not have been particularly relevant during trial.? The State did not attack the reliability of the flight records or LD?s affidavit, and the district court did not find that evidence unreliable. The court concluded that A?s 2006 affidavit was not as inconsistent as the magistrate and the district court determined. Further, petitioner convincingly claimed that the circumstances surrounding A?s 2006 recantation rendered it more credible than his trial testimony or pretrial statements. The fact that A ?had no motive to recant his testimony but instead sought to do so on his own free will, and has not subsequently withdrawn that testimony, lends it credibility.? The court also disagreed that the passage of time alone was sufficient to render DD?s affidavit unreliable, especially since the date at issue was his birthday. The court concluded that the new evidence petitioner presented provided ?strong support? for his claim that he was in New York at the time of B?s murder and undercut the State?s argument that he would have been able to travel from New York to Ohio in time to commit the murder.

Holding that the petitioner presented a credible claim of actual innocence that entitled him to equitable tolling of AEDPA?s statute of limitations and review of his habeas petition on the merits, the court reversed the district court?s order dismissing his petition as untimely and remanded the case.

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Source: http://aldrichlegalservicesblog.wordpress.com/2012/10/12/criminal-law-4/

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Biden Takes Ryan Around the World

153955293 Vice President Joe Biden

Photograph by Saul Loeb/AFP/GettyImages.

It wasn?t as lopsided as Gov. Romney?s win over President Obama last week, but Joe Biden mopped the floor with Paul Ryan in their debate Thursday night, on foreign as well as domestic policy, though on one big issue?the drawdown of troops in Afghanistan?the vice president had his facts wrong.

The first issue on the table was Libya. Rep. Ryan correctly chided the Obama administration for taking a week to admit that the attack on the U.S. consulate in Benghazi was a terrorist assault, not a protest that got out of hand, and for not protecting the facility with more Marines.

Biden replied that Obama?s statements reflected the intelligence community?s analysis and that when the analysis changed, so did his statements. He said that Thomas Pickering, a veteran ambassador, was conducting an investigation. He also noted that Congress, with Ryan?s vote, had reduced the budget for embassy security by $300 million?and recalled that Romney came out, right after the attack, and gave a press conference before knowing any of the facts: hardly presidential behavior.

That exchange was probably a draw. The truth is that both sides have something to be seriously embarrassed about.

The next issue: Iran, and here Ryan was as weak as Romney was in his foreign-policy speech earlier this week. Ryan charged that Iran is closer to getting nuclear weapons than it was when Obama took office, that the ayatollahs aren?t taking Obama?s threats seriously, and that the sanctions?which, he admitted, are crippling Iran?s economy?are as strong as they are only because of congressional insistence.

Biden laughed at that statement, and rightly so. Congress has had very little to do with sanctions; Obama has managed to rally the entire Western world to join in the sanctions and, at least to some degree, the Eastern world (Russia, anyway) as well. As for the line, which Ryan repeated, that Obama went on a morning talk show rather than meet with Israeli Prime Minister Bibi Netanyahu, Biden said that he sat in on a phone conversation between Obama and Netanyahu that went on for longer than an hour, during which they agreed on the main points. Netanyahu, for instance, supports the sanctions.

Martha Raddatz, the moderator and longtime war correspondent, asked Ryan what he and Romney would do to make the ayatollahs take their threat more seriously? Ryan had no answer.

Several points, possibly game, to Biden.

On the defense budget, Ryan denied that Romney wanted to increase military spending by $2 trillion over the next 10 years. Rather, he merely wanted not to reduce the budget by $478 billion, as Obama was planning to do?to say nothing of the $500 billion extra that would be cut automatically if Congress fails to strike a debt deal.

Biden noted that the Joint Chiefs have no problem with the $478 billion cut?that they favor a ?smaller, leaner? army with more special forces?and that Ryan himself voted for the sequestration pact that might trigger across-the-board cuts in the federal budget.

Source: http://feeds.slate.com/click.phdo?i=36ff255c062b8cf2f6f99451a03fdde4

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Women's home fighting insurance giant to stay put

The Anna Louise Inn stands near the Great American Tower, left, that was developed by Western & Southern Financial Group, Monday, Sept. 24, 2012, in Cincinnati. Western & Southern wants the 103 year old home for women to leave the picturesque downtown neighborhood that they share in favor of a boutique hotel. (AP Photo/Al Behrman)

The Anna Louise Inn stands near the Great American Tower, left, that was developed by Western & Southern Financial Group, Monday, Sept. 24, 2012, in Cincinnati. Western & Southern wants the 103 year old home for women to leave the picturesque downtown neighborhood that they share in favor of a boutique hotel. (AP Photo/Al Behrman)

Sherene Julian sits inside her room at the Anna Louise Inn, Monday, Sept. 24, 2012, in Cincinnati. Western & Southern Financial Group wants the 103 year old home for women to leave the picturesque downtown neighborhood that they share in favor of a boutique hotel. (AP Photo/Al Behrman)

Mary Carol, executive director of Cincinnati Union Bethel, stands outside the Anna Louise Inn, Monday, Sept. 24, 2012, in Cincinnati. Great American Tower, developed by Western & Southern Financial Group, is seen at right. Western & Southern wants the 103 year old home for women to leave the picturesque downtown neighborhood that they share in favor of a boutique hotel. (AP Photo/Al Behrman)

Residents Sherene Julian, right, and Robin Howard talk on the porch outside the Anna Louise Inn, Monday, Sept. 24, 2012, in Cincinnati. Western & Southern Financial Group wants the 103 year old home for women to leave the picturesque downtown neighborhood that they share in favor of a boutique hotel. (AP Photo/Al Behrman)

Mary Carol, right, executive director of Cincinnati Union Bethel talks with residents Sherene Julian, left, and Robin Howard, in the lounge at the Anna Louise Inn, Monday, Sept. 24, 2012, in Cincinnati. Western & Southern wants the 103 year old home for women to leave the picturesque downtown neighborhood that they share in favor of a boutique hotel. (AP Photo/Al Behrman)

CINCINNATI (AP) ? As Roger Federer and Novak Djokovic battled for the title at the Western & Southern Open north of Cincinnati, a small plane buzzed overhead, trailing a banner calling the sponsor a bunch of bullies.

The public nose-thumbing gave thousands of tennis fans a window into another match being played out downtown ? between insurance giant Western & Southern Financial Group and a nonprofit home for women called the Anna Louise Inn ? a fight that is headed for the Ohio Court of Appeals this month.

It has become the most public conflict in the transformation of Cincinnati, as well as a stark example of the difficulty in balancing the public benefits of gentrification with the human costs.

"We really do believe enough is enough," said Mary Carol Melton, executive vice president of Cincinnati Union Bethel, a nonprofit that operates the inn. "It's like someone coming up to you and saying, 'I want to buy your house' and you politely say it's not for sale, and they don't understand that not for sale means it's not for sale."

Western & Southern, a Fortune 500 company, has been trying for several years to buy or force out the Anna Louise from the Lytle Park Historic District, the beautiful and serene neighborhood they share, and turn it into a boutique hotel.

The company has successfully sued to stop renovation of the 103-year-old property and publicly disparaged residents as homeless prostitutes who don't belong in the neighborhood.

CEO John Barrett wrote in The Cincinnati Enquirer last month that he wants to acquire the Anna Louise not out of greed, but to turn the building into a hotel, "which we believe is its best use given the historic character and architecture" of the neighborhood.

The home's low-income residents and their supporters have been fighting back, protesting outside company headquarters, filing a lawsuit alleging discrimination and posting a biting online video in which a company spokesman is parodied as saying: "Why would you want to give safe housing to women in need when we can hook you up with a view like this?"

And then there was the flyover at the tennis tournament in August with the banner: "W & S: STOP BULLYING ANNA LOUISE INN."

Western & Southern has a long attachment to the Lytle Park area. It paid to have the neighborhood's namesake preserved in 1970 when an interstate tunnel went in. The company is headquartered next to the park and developed a $322 million, 41-story office tower down the street that opened last year. It owns other properties in the neighborhood, including a recently renovated upscale hotel.

The company has a standing offer to buy the Anna Louise for $3 million and argued in the newspaper that the women would be better off in "a brand new, built-to-suit building in a better location, closer to services, health care and transportation."

Barrett pointed to a University of Cincinnati study commissioned by Western & Southern that shows a hotel there could generate $355 million in economic impact over 30 years.

"Under our proposal, we hope to break even, but the phenomenal benefits to the city are too great to pass up. It is the right thing to do for Cincinnati," Barrett wrote. "No one loses with our proposal."

The building has been housing low-income, single women since 1909, after President Howard Taft's brother, Charles P. Taft, built it for ambitious types pouring into Cincinnati to work as stenographers, bookkeepers and secretaries. He named it after his daughter.

Over the years, the inn has become a haven for women looking to make a new start. Some residents are former prostitutes and drug addicts; some have left abusive relationships; and some are between jobs. Several have lived there for decades.

"This is my home. It would just break my heart if I had to move," said 47-year-old Sherene Julian, who has lived at the inn for nearly three years after escaping a life of prostitution and drugs. "This place has helped me get my life back together."

All 78 women now living there pay about $250 a month for a cramped bedroom with community bathrooms and kitchen, just across a park from large one-bedroom apartments that start at $1,575 a month.

In need of expensive renovations, the inn considered selling a few years ago and got a $1.8 million offer from Western & Southern, less than half the property's value. The inn decided not to sell after winning $12.6 million in federal and state tax credits, allowing it to stay put and give the residents more room and privacy.

Days before the renovation was to begin in May 2011, Western & Southern sued the inn and the city, and a year later successfully won its argument that the inn wasn't properly zoned and shouldn't be allowed to renovate. The Anna Louise's appeal is the subject of a hearing Oct. 30.

It's just one battle being fought in Cincinnati, an Ohio River boomtown that fell on hard times after the decline of manufacturing.

In recent years, parts of the city have resurged, largely due to development and cash from hometown companies like Western & Southern, which reported $12 million in charitable donations and community sponsorships in the city in 2011. The company used to donate to the Anna Louise but has stopped.

The city and a nonprofit developer have been rehabbing Over-the-Rhine, a historic but troubled neighborhood that was the site of race riots in 2001. Dozens of buildings have been restored, trendy restaurants and bars have opened, and a popular park underwent a $48 million transformation.

But three residents alleged new rules at the park were designed to exclude the homeless and poor, and community activists argue the changes have forced out low-income residents.

"This is not just a Cincinnati story. This fits into a much larger picture, even a global picture," said Sharon Zukin, a sociology professor at Brooklyn College who studies urban change. "There's a whole group of cases like this where corporations just sweep out anybody who doesn't fit their new scenario."

Zukin pointed to a nursing home in New York City's Greenwich Village, which used to have low rents that attracted artists and bohemians but now teems with celebrities and others in the upper crust. Last year, a developer paid about $30 million for the property to put in high-end condos, and the nursing home moved.

"In the interest of upscaling a neighborhood and attracting the young creatives, the empty-nesters and the gentrifiers, high-level corporate people pay high prices to supposedly regenerate the centers of our cities," Zukin said. "In doing that, any facility that helps the old, the sick and the poor is kicked out."

___

Follow Amanda Lee Myers on Twitter at https://twitter.com/settings/profile

Associated Press

Source: http://hosted2.ap.org/APDEFAULT/386c25518f464186bf7a2ac026580ce7/Article_2012-10-11-Insurance%20Giant%20vs%20Women's%20Home/id-bb237c0b42be4d289ff646acdc3d973a

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Prospective Alzheimer's drug builds new brain cell connections, improves cognitive function of rats

ScienceDaily (Oct. 11, 2012) ? Washington State University researchers have developed a new drug candidate that dramatically improves the cognitive function of rats with Alzheimer's-like mental impairment.

Their compound, which is intended to repair brain damage that has already occurred, is a significant departure from current Alzheimer's treatments, which either slow the process of cell death or inhibit cholinesterase, an enzyme believed to break down a key neurotransmitter involved in learning and memory development. Such drugs, says Joe Harding, a professor in WSU's College of Veterinary Medicine, are not designed to restore lost brain function, which can be done by rebuilding connections between nerve cells.

"This is about recovering function," he says. "That's what makes these things totally unique. They're not designed necessarily to stop anything. They're designed to fix what's broken. As far as we can see, they work."

Harding, College of Arts and Sciences Professor Jay Wright and other WSU colleagues report their findings in the online "Fast Forward" section of the Journal of Pharmacology and Experimental Therapeutics.

Their drug comes as the pharmacological industry is struggling to find an effective Alzheimer's treatment. Last month, the Pharmaceutical Research and Manufacturers of America, or PhRMA, reported that only three of 104 possible treatments have been approved in the past 13 years.

"This 34-to-one ratio of setbacks to successes underlines the difficulty of developing new medicines for Alzheimer's," the trade group said in a news release. Development of the WSU drug is only starting. Harding and Wright must first satisfy the Food and Drug Administration that it is safe. Only then would clinical trials begin to see if a drug that works in a rat will work in a human.

Safety testing alone could cost more than $1 million, says Harding, who is looking to fund the drug's development through his and Wright's company, M3 Biotechnology Inc., the WSU Research Foundation, and ultimately large pharmaceutical company partners.

Harding, a medicinal chemist, and Wright, a neuroscientist, have been working on their compound since 1992, when they started looking at the impact of the peptide angiotensin IV on the hippocampus, a brain region involved in spatial learning and short-term memory. Typically, angiotensins have been linked to blood pressure regulation, but Harding and Wright noticed that angiotensin IV, or early drug candidates based on it, were capable of reversing learning deficits seen in many models of dementia.

The practical utility of these early drug candidates, however, was severely limited because they were very quickly broken down by the body and couldn't get across the blood-brain barrier, a cellular barrier that prevents drugs and other molecules from entering the brain. The only way the drug could be delivered was by direct brain application.

Says Harding: "We said, 'That's useless. I mean, who wants to drill holes in people's heads? It's not going to work. It's certainly not going to work for the big population.'"

Five years ago, Harding designed a smaller version of the molecule that he and Wright called Dihexa. Not only is it stable but it can cross the blood-brain barrier. An added bonus is it can move from the gut into the blood, so it can be taken in pill form.

The researchers tested the drug on several dozen rats treated with scopolamine, a chemical that interferes with a neurotransmitter critical to learning and memory. Typically, a rat treated with scopolamine will never learn the location of a submerged platform in a water tank, orienting with cues outside the tank. After receiving the WSU drug, however, all of the rats did, whether they received the drug directly in the brain, orally, or through an injection.

"Same result, every time," says Harding.

Harding and Wright also reported similar but less dramatic results in a smaller group of old rats. In this study the old rats, which often have difficulty with the task, performed like young rats. While the results were statistically valid, additional studies with larger test groups will be necessary to fully confirm the finding. Currently, the "gold standard" compound for creating neuronal connections is brain-derived neurotrophic factor, or BDNF, a growth-promoting protein associated with normal brain development and learning. Autopsies of Alzheimer's patients have found lower levels of BDNF in the brain.

In bench assays using living nerve cells to monitor new neuronal connections, Harding, Wright, and their colleagues found Dihexa to be seven orders of magnitude more powerful than BDNF, which has yet to be effectively developed for therapeutic use. In other words, it would take 10 million times as much BDNF to get as much new synapse formation as Dihexa.

"We quickly found out that this molecule was absolutely, insanely active," says Harding. These results further suggest that Dihexa or molecules like it may have applications in other neurodegenerative disease or brain traumas where neuronal connections are lost.

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Story Source:

The above story is reprinted from materials provided by Washington State University. The original article was written by Eric Sorensen, WSU science writer.

Note: Materials may be edited for content and length. For further information, please contact the source cited above.


Journal Reference:

  1. A. T. McCoy, C. C. Benoist, J. W. Wright, L. H. Kawas, J. Bule-Ghogare, M. Zhu, S. M. Appleyard, G. A. Wayman, J. W. Harding. Evaluation of metabolically stabilized angiotensin IV analogs as pro-cognitive/anti-dementia agents. Journal of Pharmacology and Experimental Therapeutics, 2012; DOI: 10.1124/jpet.112.199497

Note: If no author is given, the source is cited instead.

Disclaimer: This article is not intended to provide medical advice, diagnosis or treatment. Views expressed here do not necessarily reflect those of ScienceDaily or its staff.

Source: http://feeds.sciencedaily.com/~r/sciencedaily/most_popular/~3/NI2Ar624njc/121011090653.htm

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Anti-obesity Campaign Shifts Blame to Parents | The Moose is Loose

Anti-obesity Campaign Shifts Blame to Parents

Written by Dai | posted in Anti-obesity, Health & Wellness | 7 Comments

The Minnesota Blue Cross Anti-obesity campaign shifts the blame back to the parents in a series of videos which have been touted as ?finger-pointing? and ?the blame-game?. ?Based on the nature of the videos and scenes depicted, the videos framed?as being more on the shaming side of things and not education.

In August 2011 Children?s Healthcare of Atlanta kicked off a grim, yet realistic and highly controversial anti-obesity campaign. The Children?s Stop Childhood Obesity campaign includes billboards, ads and commercials across the Atlanta area and is meant to help raise awareness about childhood obesity and to improve the health of overweight and obese children.

I feel they are great videos. ?I agree that they are a bit on the blame side, but that aside I still stand by my answer to my friend who asked me my opinion of the video. ?I replied:

?I saw the ads circulating through Twitter too. I like them! ?If parents can?t be the role models they need to be for their kids, then who should be? ?I still believe that the onus falls on parents to set the example by which their own children can live by. ?All of us who are parents are born with the responsibility to lead by example and show (not tell) our children the benefits of living a healthy, active lifestyle. Period.?

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Remember, no matter your answer, think about this ? the videos have done what I believe they were meant to do. ?They have us all thinking, discussing and debating the obesity epidemic.

So, in turn, I ask you:

  • What do you think of these videos?
  • Do you feel they are too harsh?
  • What would be a better solution/ad campaign in your opinion?

?

Source: http://www.daimanuel.com/2012/10/09/anti-obesity-campaign-shifts-blame-to-parents/

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South Africa's townships still not safe for gay, lesbian and - UNHCR

Bontle Khalo is a lesbian, gay, bisexual, transgender and intersex (LGBTI) rights activist in KwaThema ? a South African township once known as a haven for the LGBTI community but recently marred by a spate of hate crimes against them. Khalo is a full-time volunteer for the Ekurhuleni Pride Organising Committee (EPOC), which she co-founded in 2009.

The murders were not too far apart. Girly Nkosi was in 2009, Eudy Simelane was 2008.? Before that, I wouldn't say I was an activist, I also didn't know very much about LGBTI issues. I just knew I was a lesbian woman.

The first reaction was fear. And shock. We didn't know that things like that could happen here in a very close-knit community, a very small community where LGBTI people felt free to be open and outspoken. We also didn't know the term ?hate crime?. It was never something that we really experienced.?

That fear soon became anger. And we were determined to do something about it. We didn't know exactly what. But we knew the feeling that we had, the fear and the anger, that we don't ever want to feel that way again.

We spoke about doing the Ekurhuleni Pride march basically to hand over a memorandum to the KwaThema police station, asking them to do something about these murders. But then soon afterwards, the Ekurhuleni Pride Organising Committee was formed, and the Pride march became an annual event.

We got involved with a lot of community dialogues. We would go to the street, we would go to schools, we would go to clinics, and I think after that we had a sense that things are getting better. We felt that people were a lot more educated about LGBTI issues. And then Noxolo was killed.

It was very heartbreaking. I remember feeling like the work we were doing was not enough at that time. I think for our fellow members as well there was just, you know, a feeling? we hoped that things had changed. Knowing that this has happened again. It was a terrible feeling.

People were outraged. We would have people coming to the office saying that they wanted to do something about this. A lot of people wanted justice, wanted answers, wanted something to be done. We had support from people who were not part of the LGBTI community. People are willing to do something although they don?t know what because the police are not being helpful with the situation and I don?t think they are doing enough to ensure these perpetrators are found. People are still eager to help us out and to help us find answers.

I think when people look at South Africa they assume, ?oh South Africa is such a wonderful place to be a lesbian or a gay person? but that?s not the reality of it. There is still a lot of discrimination and intolerance that has not been addressed and lots of work that still needs to be done, particularly in the townships.

Even in Cape Town townships there have been a lot of crimes, a lot of murders and there have been a lot of rapes. The statistics there are shocking.

If you are a black lesbian, gay or transgender person living in the township it?s still not safe; you still kind of brace yourself, because black people still have a lot of misconception.

Men in particular still have lot of hate and anger about LGBTI issues for lesbians.

My personal feeling is that a lot of men felt emasculated, I don't think they agreed with the notion that women were in relationships with each other and were so vocal about these relationships.

I think in the early 70s, organizations like GLOW (Gay and Lesbian Organisation of the Witwatersrand) were headed by gay men. I don't think people had a problem with gay men, because they were so out there and so flamboyant. It was just all fun and games for people and they felt comfortable with that.

When lesbian women started to come out more and more, I guess men didn't feel comfortable with that. Not in the way they just ignored gay men or took it as a joke or whatever.

I think after Noxolo?s murder a lot of people had a lot of fear. That?s when people said that they didn't feel comfortable socialising at night, they didn?t feel comfortable with going to certain places. Noxolo?s murderers are still out there, somewhere. What happened to Noxolo can be repeated because we don?t know who they are.

We have received a lot of support from other LGBTI organisations in South Africa but it means a huge to deal to know that the whole world is also behind us and that they are supporting the work that we are doing and that they want something to be done about Noxolo?s case.

Since we?ve partnered with Amnesty we have learnt a huge deal from them and it made our work so much easier. Really, from the bottom of our hearts, it means a lot.

We are going to ensure that we do as much as we can to make sure we live in the kind of society we would like to live in. We are going to work very very hard towards that.

Topics: Transgender, Lesbians, Homosexuals, Gays, Bisexuals, Gender discrimination,

Copyright notice: ? Copyright Amnesty International

Source: http://www.unhcr.org/refworld/docid/5073d4dd2.html

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Five years of eReport | eReport

This blog started five years ago today, a couple of weeks before Amazon launched the game-changing Kindle and a couple of months after the industry had placed its hopes for a smooth transition to digital on its own open format, EPUB.

It's hard to remember or imagine but at that time Sony was the hot ticklet with its eInk-based e-reader and its connected ebookstore. Amazon took this model a year after Sony and turned it into the stellar success story we see today. Sony failed to capitalise on its early lead.

Like Apple which had transformed the music business with its iPod, Amazon didn't invent the ebook business. It took what was there, put it into a consumer-friendly package and marketed it superbly. And like Apple with its iPod/iTunes digital music success, Amazon captured more than half of the market (and almost 60% of the largest market, the US). And it has managed to hold this lead. None of its competitors has come close.

I'm at the Frankfurt Book Fair as I write this and a global study released by researcher Bowker confirms this. The research, conducted online, compares a dozen countries, including New Zealand, for ebook use. (Excuse the fuzzy picture but the general trend should be clear in the few countries compared here.)

Source of eBooks purchased: Bowker study

Source of eBooks purchased in last six months. Source: Bowker

(The data in the chart above shows the site most frequently used for eBook purchases.)

The large mid-blue bar is Amazon whose share of purchases ranges from more than 70% in the UK to 52% in New Zealand and just 28% in Canada where home-grown Kobo seems to have done an outstanding job of holding Amazon at bay.

Kobo's relatively strong performance in New Zealand is helped by its local agent Whitcoulls. In Australia, its much weaker showing was probably caused by the closure of its original agent, the Angus and Robertson chain.

The Kindle's success continues to undermine EPUB as the ambitious new version, EPUB3, struggles to get traction a year after its release. It highlights the challenging position the industry is now in. Five years after the Kindle and EPUB, there's a clear digital path for simple narrative works but we seem to be little closer to a digital solution for the rest.

In many ways, we might be worse off because publishers are now confronted with so many format choices ? including KF8, Amazon's rival to EPUB3. But KF8 adoption is also slow ? at least as far as its use in rich format eBooks is concerned. This is partly due to Amazon's own slow roll-out: it has a large installed base of older Kindles that won't support the more advanced features and it's not in Amazon's ? or publishers' ? interests to suddenly lock out a large chunk of Amazon's user base from new ebooks.

So, where to in the next five years? Well, in many ways, we're back to where we were before October 2007. There's a plethora of formats, fragmented distribution channels, and a big opportunity waiting for eBooks 2.0, the move beyond our simple formats of today. Where's the next Amazon?

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Looking for online courses or free tutorials on digital publishing or digital marketing for ebooks? Visit?DigitalPublishing101.com.

Source: http://activitypress.com/2012/10/10/five-years-of-ereport/

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Google drafts checklist for making top-notch Android tablet apps

Google drafts checklist for making Android tablet apps

Google's Senior Mobile VP Andy Rubin has been cool towards tablet apps, arguing that mobile titles shouldn't be tuned to a specific form factor. Whether you agree with that assessment or not, his company has produced an (arguably overdue) tablet app checklist to help developers with big screen ambitions. The step-by-step walkthrough tells developers how to make the most of all that free space and optimize for the larger hardware, touch input targets and widgets. There's a difference between having guidelines and getting app writers to follow them, but the checklist is an important step towards keeping that Galaxy Note 10.1 or Nexus 7 well-fed.

[Thanks, Christopher]

Filed under: ,

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Argument preview: Do facts really matter? : SCOTUSblog

At 10 a.m. on Wednesday, the Supreme Court will hold a one-hour hearing on the legal standard for deporting a non-citizen who has been convicted of possessing a small amount of marijuana,?with no evidence that he received any money in any transaction.? The case of Moncrieffe v. Holder will be argued by Thomas C. Goldstein of the Washington law firm of Goldstein & Russell, for the non-citizen, Adrian Moncrieffe.? The?government will be represented by Pratik A. Shah, an Assistant to the U.S. Solicitor General.

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Background

Non-citizens living in the United States, even if they have gained a permanent right to be in the country, can be sent involuntarily back to their homelands if they are convicted of what Congress considers to be an ?aggravated felony.?? The Supreme Court has spent years and much effort trying to sort out what that means, but it seldom has had as simple a case as the one now before it, involving a native of Jamaica who came to the United States legally at age three, and lived in the country, achieving permanent legal status, until he was sent home as an adult with two children.

He has been deported after being convicted of possessing about one-twentieth of an ounce of marijuana; there is no proof that he received any money, so his lawyers have argued that he is hardly guilty of ?illicit trafficking? in illegal drugs, as a commercial dealer would be.? His case, though, raises a significant issue of how a state conviction is to be treated, when judging whether it qualifies as an ?aggravated felony? that can lead to deportation.? The case, in effect, turns on the issue of whether facts really matter in such a case, or whether a hard-and-fast legal rule settles it.

The Supreme Court obviously granted review in the case of Adrian Moncrieffe because there is a clear-cut split in lower courts on the core legal issue at stake.? Even the government, while opposing Supreme Court review, said there was a disagreement, but argued that it was not well-developed and might go away.??The Circuit Courts are divided, three to two, on whether a first-time offender found guilty of having a small amount of marijuana has committed an ?aggravated felony,? when the conviction does not include evidence that the individual was a distributor who got money for dealing.

Under federal immigration law, a non-citizen who has been convicted of an ?aggravated felony? is subject to deportation.? If the conviction has come under a state law, that can rise to the deportation-eligible level if it is?equivalent to a felony under federal narcotics law.?? Under federal law, a person who has possessed with intent to distribute less than 50 kilograms of marijuana has committed a felony, although a provision in the law says that if the amount distributed was small with ?no remuneration,? that is treated as only a misdemeanor.? If that provision applies, then a state possession with intent to distribute would not become?a deportable offense.?? A key issue now before the Court is whether that provision does have a role that would work to Adrian Moncrieffe?s advantage.

In 2008, Moncrieffe was arrested in Georgia, with 1.3 grams of marijuana in his possession.? He was charged with possession with intent to distribute.? The law in Georgia is not limited to any minimum amount of marijuana and it does not require proof that the person with a drug got paid for it.? Moncrieffe pleaded guilty, and was put on probation for five years.

About two years later, federal official told him he would be deported, based on the Georgia conviction.?? He lost an appeal within the immigration system, with the conclusion that his crime did amount to an ?aggravated felony.??? The Fifth Circuit Court agreed.? While conceding that there was a split among appeals courts on the question, it concluded that, since the amount of marijuana was not something that prosecutors had to prove in his case, as an element of the offense, then his crimes constituted a felony under federal law.? He has since been deported, but that apparently does not mean that he cannot continue to contest his deportation; he?could return to the U.S. if the deportation order were overturned.

The Fifth Circuit Court applied a hard-and-fast version of what has been called the ?categorical approach? to determine whether the crime at issue in a state conviction reaches the deportability level under immigration law.? The analysis focuses on the elements of the state crime, without regard to the specific facts in a given case.? So, immigration officials look at the factors that prosecutors must prove to get a conviction ? in other words, the crime?s elements ? and if they find that proof of those same elements would be a federal felony, that ends the inquiry.

Under that line of reasoning, because possession of marijuana with intent to distribute it is a felony under federal narcotics law, the crime is complete if, under the state law, the accused knowingly possessed marijuana with intent to distribute it.? The provision in federal law that the situation can be mitigated if the amount was small and no money changed hands does not even come into play, according to this approach.?? In other words, Moncrieffe had virtually?no chance to avoid deportation once federal officials concluded that there was an overlap between what his state crime constituted and what federal law required for a felony offense.

In his petition to the Supreme Court, Moncrieffe?s lawyers argued that the mitigating provision has to be a part of the analysis.?? The Justice Department, in reply, argued that that was beside the point.? Categorically, the Georgia conviction made his crime the same as if he had been convicted of a federal felony, the Department asserted.?? Too many practical difficulties would arise, the Department told the Court, if a focus on the factual events underlying a state conviction had to be made?in each case.

While Moncrieffe?s lawyers conceded that the Fifth Circuit ruling against him squares with similar rulings by the First and Sixth Circuits, it conflicts with rulings by the Second and Third Circuits and, they argued, with precedent from the Supreme Court.? In those other circuits, the petition said, the appeals courts have ruled that a state law drug conviction without proof of a payment or of a specific amount of marijuana is to be read as a misdemeanor for immigration law purposes, unless there is evidence behind a conviction that proves otherwise.

The petition contended that the issue in the case ?affects hundreds, if not thousands,? of individuals every year, because drug convictions make up ?the number one criminal basis? for deportations ? something like one out of every four.

The Court granted review of the case on April 2.

Briefs on the Merits

There is no dispute in this case that the case is to be decided using the so-called ?categorical approach? to determine whether a conviction under a state law qualifies as an ?aggravated felony? for purposes of deportation.? Thus, the dispute in the case comes down to whether the ?categorical approach? is to be modified by the provision in federal narcotics law that takes into account whether a drug possession charge was based on a small amount of the drug and no money was involved.? The split in the lower courts, Moncrieffe?s brief on the merits argued, is due to differing versions of the ?categorical approach.?

In Moncrieffe?s case, the Fifth Circuit interpreted that approach to mean that, once he was convicted of possession with intent to distribute, that amounted to a federal felony because the quantity of drug involved made no difference under the Georgia conviction.? That put on Moncrieffe the burden of proving that his crime was actually only a misdemeanor, and the Fifth Circuit said he had failed to prove that in the immigration proceedings.? Any marijuana conviction that is silent on the amount of drugs or on whether money was involved is a felony, according to that approach.

By contrast, Moncrieffe?s brief contended, the ?categorical approach? taken by other federal appeals courts follows this reasoning: a state conviction is not an aggravated felony because the actual basis of the conviction ? the findings made to get a guilty plea or verdict ? do not necessarily add up to being a felony.?? In Moncrieffe?s case, the fact that the amount of marijuana involved was small and the fact that there was no money exchanged makes the conviction only a misdemeanor when the mitigating provision of federal law is taken account, the brief asserted.

?Congress provided that a marijuana-related conviction may or may not be a felony, depending on the amount of marijuana involved and whether the defendant received any remuneration,? the Moncrieffe brief declared.?? His conviction established only two facts: that he possessed marijuana, and that he intended to distribute it.?? That could make it either a felony or a misdemeanor under federal law, and in this case, it should translate as a misdemeanor only, the brief contended.? The facts established by his conviction should work in his favor, his lawyers argued.? That was dispositive, on its face, they said.

Moncrieffe?s side has drawn the support of a handful of amicus briefs, from immigrants? rights groups to professors of immigration law and human rights advocates.?? There are no amici on the government?s side.

Holding to the position the government took at the petition stage, the U.S. Solicitor General urged the Court to embrace a ?categorical approach? that treats a state conviction as an ?aggravated felony? if the state conviction has all of the elements of a felony as defined by federal narcotics law.?? Moncrieffe?s Georgia crime had the same elements as a federal drug felony: possession and intent to distribute.

The provision in the law that would consider the small amount of drug involved, plus the lack of any money changing hands, comes into play, the Solicitor General contended, only as a factor for immigration officials to consider.?? They will allow a non-citizen before them to prove that this ?mitigation exception? does apply in a given case, the brief said.? ?That subsequent, ?circumstance-specific? inquiry does not contravene the categorical approach but rather operates outside of it, and addresses any concern that the decision below would produce unintended or unfair results,? the government brief told the Court.

Moncrieffe, it argued, should not be allowed to benefit from ?the rule of lenity? or from ambiguities about the scope of his conviction, since the elements of his conviction show he has committed a felony under immigration law, making him eligible for deportation.

Both sides agreed that Moncrieffe?s conviction is the kind that could lead to deportation.? There is a sharp difference, though, over how a specific case like his gets to that point, and to whether the non-citizen involved has a chance to avoid being deported.? Moncrieffe?s brief contended that his conviction should never qualify as an ?aggravated felony,? and so he should have a chance to prove that his offense involved only a small amount, with no money exchanged, and that should make him eligible for a ruling by the government that he can stay.? The government brief suggested that, if the citizen does not prove that his offense fit the category for a misdemeanor under federal law, he remains deportable automatically; this is a more complex procedure for the non-citizen to pursue.

Analysis

The Court has before it in these cases quite straightforward provisions of law, but they have something of an internally contradictory character to them, so the Justices?may have to satisfy themselves on the policy goals that Congress was pursuing in passing those laws before it can sort through the statutory language.? Did the lawmakers want deportation to be virtually automatic on conviction of a state drug crime that seems superficially to?overlap with the scope of?a federal felony, or did they mean to leave some discretion when the state crime was not that of a significant drug dealer? What system did the lawmakers think was the most workable to enforce both drug crimes and immigration policy?? Would they have been content with a system that leaves it to immigration officials to show some leniency, or did they intend to require that?

Over the years, most of the Justices have made it very clear that they accept that drug crimes are serious indeed, and that the government has ? and should have ? significant authority to deal with those offenses.? It is not clear, though, that they would consider that any drug offense, however minor, should be treated as threatening to society.?? Moncrieffe?s best hope in this case would seem to depend upon whether the Justices can look at the specifics of his crime, compare it to the quite drastic remedy of deportation of someone who has grown up in the U.S. since childhood, and then what he did deserve less.?? After all, even the state of Georgia thought probation was enough of a punishment.

This case, made simple

America?s drug laws are often complex, multi-faceted declarations of policy toward crime, and it is the Supreme Court?s ultimate task, when it has a drug conviction before it, to make some sense of those laws.? This case is a typical one in which one provision of law seems to cut one way, and a second provision appears to cut another way.?? Here, one law would send an immigrant back to his home country upon conviction of a drug crime, even a minor one, merely because there was a conviction.? But a separate law seems to say that, if the crime was a minor one, that should make it subject to a less harsh penalty.

The Jamaican native involved in the case was convicted of having a small amount of marijuana in his car when he was stopped?by police.? The Court has to sort out whether the crime itself, and the details of his actual conviction, are the kind that Congress intended to make as the basis for virtually automatic deportation when committed by a non-citizen, even one who has gained a legal right to live in the U.S.

Disclosure: Thomas C. Goldstein, who will be arguing in this case, and his colleagues at the law firm of Goldstein & Russell have various capacities with this blog that are separate from their professional representation of Adrian Moncrieffe.? The author of this post works only for the blog and operates independently of the law firm?s practice.

Posted in Moncrieffe v. Holder, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: Do facts really matter?, SCOTUSblog (Oct. 8, 2012, 4:08 PM), http://www.scotusblog.com/2012/10/argument-preview-do-facts-really-matter/

Source: http://www.scotusblog.com/2012/10/argument-preview-do-facts-really-matter/

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